RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03223
            INDEX CODE:  131.00
      XXXXXXXXXXXXXXXX COUNSEL:  Mr. Barry P. Steinberg

      XXXXXXXXXX HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Officer Selection Briefs (OSBs) prepared for  the  Calendar  Year  1999B
(CY99B) (P0599B), CY00A (P0500A), CY01B (P0501B),  and  the  CY02B  (P0502B)
Lieutenant Colonel (LtCol) Central Selection Boards (CSBs) be  corrected  to
reflect:

      1.  His award of the Defense Meritorious Service Medal (DMSM).

      2.  His  completion  of  Air  Command  and  Staff  College  (ACSC)  by
correspondence on a date prior to the conduct of  the  original  board  that
would have first considered him for promotion  to  LtCol  had  he  not  been
improperly separated from active duty.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel states, in part, that applicant is  a  class  member  of  a  pending
litigation in the United States Court of Federal Claims.   As  a  result  of
the  settlement,  applicant’s  record  will  be  considered  by  a   Special
Selection Board on 29 November 2005 for promotion to  the  grade  of  LtCol.
Prior to applicant’s consideration,  his  records  should  be  corrected  to
include his completion of ACSC at  a  date  prior  to  the  conduct  of  the
original board that would have first considered him for promotion  to  LtCol
and his award of the DMSM.

In support of his request, applicant provides his counsel's  statement;  and
copies of ACSC completion certificate  and  his  award  of  the  DMSM.   His
complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was considered and not  selected  for  retention  in  the  Air
Force by the FY93 RIF board, which convened on 20 July 1992.  The  applicant
was separated from active duty on 31 December 1992.

Pursuant to the court ordered settlement agreement in the Berkley v.  United
States, the Calendar  Year  2004  (CY04)  Special  Board  (SB)  held  on  21
September 2004 overturned this action.  The applicant met the  CY05  Special
Selection Board (SSB) on 17 May 2005  and  was  selected  for  promotion  to
major.  The applicant  will  now  meet  an  SSB  on  29  November  2005  for
promotion consideration to the grade of LtCol by the CY99B  (P0599B),  CY00A
(P0500A), CY01B (P0501B), and the CY02B (P0502B) LtCol CSBs.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO recommends approval of the applicant’s  request  to  reflect  his
award of the DMSM on his selection briefs for the CY01B and the CY02B  LtCol
boards.  However, DPPPO recommends denial to reflect award of  the  DMSM  on
his selection briefs for the CY99B and CY00A LtCol selection boards  because
the period of the award  is  from  March  1995  to  March  2001,  after  the
convening dates of both boards (19 April 1999 and 30 November 1999).

DPPPO recommends denial of the applicant request to show completion of  ACSC
by correspondence on a date prior to the conduct of the original board  that
would have first considered him for promotion to LtCol because  he  did  not
complete ACSC by correspondence until April 2003 which was  well  after  the
convening dates of the original boards.  The DPPPO evaluation is at  Exhibit
B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel responded that an error was made in respect  to  the
involuntary separation of his client.  That error has  been  corrected,  but
the consequences of the separation have not been.  Denying  entry  of  these
significant achievements denies him an opportunity to  complete  fairly  for
promotion.  It is unlikely that any of  the  benchmark  files  have  unrated
periods of active duty, and certainly not for the extended  periods  present
in the case  of  his  client.   The  injustice  of  these  circumstances  is
apparent.  Removal of that injustice, clearly within the  statutory  mandate
of the  Correction  Board,  is  best  achieved  by  including  his  military
achievements on the OSB and in the records that will be  considered  by  the
promotion board.  Such entry does not assure selection  for  promotion,  but
it is a move in  the  direction  of  fundamental  fairness  and  allows  the
promotion board to have some information concerning his  potential  and  his
activities during  this  lengthy  and  involuntary  hiatus.   The  Counsel’s
rebuttal is at Exhibit D.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of either an error or an injustice.  In this respect, we note  the
following:

      a. The applicant requests that his completion of ACSC be placed on his
OSBs.  The Air Force recommends denial of his request since  his  completion
of AFSC was well after the convening dates  of  the  original  boards.   The
Board  majority  does  not  agree.   The  applicant  was  not  provided  the
opportunity to complete ACSC while on active duty  due  to  his  separation.
However, he completed ACSC by correspondence in 2003 while  serving  in  the
Air Force Reserve.  Since the applicant did  not  have  the  opportunity  to
complete ACSC while on active duty, the majority of the Board believes  that
under the circumstances of this  case,  to  offset  any  possibility  of  an
injustice  and  in  an  effort  to  provide  him  with  proper  relief,  his
completion of ACSC  by  correspondence  should  be  reflected  in  his  OSBs
prepared for the SSBs convening on 29 November 2005.

      b. Applicant was awarded the DMSM for the period March 1995  to  March
2001 and the Air Force believes that  the  award  should  be  added  to  his
record for the CY01B and CY02B Lt Col  CSBs.   Since  it  was  not  approved
prior to the CY99B and CY00A CSBs, they do not recommend  approval  to  have
it added to his record for these boards.  We  agree  with  the  Air  Force's
recommendation.  Therefore, we believe  the  applicant’s  record  should  be
corrected as indicated below.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a.  His  OSBs  prepared  for  the  CY05  SSBs  to  provide   promotion
consideration by the CY99B, CY00A, CY01B and CY02B Lt Col CSBs be  corrected
to include his completion of ACSC by correspondence in 1999.


      b. His OSBs  prepared  for  consideration  by  the  CY05  SSBs  for
promotion by the CY01B and CY02B Lt Col CSBs be corrected to reflect  his
award of the DMSM for the period March 1995 to March 2001 and a  copy  of
the DMSM citation and/or order  be  included  in  the  Officer  Selection
Record.

________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 18 November 2005, under the provisions of AFI 36-2603:

            Ms. Kathleen F. Graham, Panel Chair
            Ms. Sue A. Lumpkins, Member
            Mr. Wallace F. Beard Jr., Member

Ms. Graham and Ms. Lumpkins voted to  correct  the  record  as  recommended.
Mr. Beard voted to deny correcting the  records  to  reflect  completion  of
ACSC; however, elected not to submit a minority report.  All  members  voted
to correct the applicant’s record to reflect his award of the DMSM  for  the
CY01B and CY02B Lt Col CSBs; however, they voted  to  deny  the  applicant’s
request to correct his record to reflect his award of the DMSM for the  OSBs
meeting the  CY99B  and  CY00A  Lt  Col  CSBs.   The  following  documentary
evidence for AFBCMR Docket Number BC-2005-03222 was considered:

    Exhibit A.  DD Form 149, dated 14 Oct 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPPO, dated 7 Nov 05.
    Exhibit C.  Letter, SAF/MRBR, dated 10 Nov 05.
    Exhibit D.  Counsel’s Rebuttal, dated 11 Nov 05.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair



AFBCMR BC-2005-03222




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:


      The pertinent military records of the Department of the Air Force
relating to XXXXXXXXXXXXXXXXXXXXXX, be corrected to show that:

           a.  His Officer Selection Brief (OSBs) prepared for the Calendar
Year 2005 (CY05) Special Selection Boards (SSBs) to provide promotion
consideration by the CY99B, CY00A, CY01B and CY02B Lieutenant Colonel
Central Selection Boards (Lt Col CSBs) be corrected to include his
completion of Air Command and Staff College by correspondence in 1999.


           b.  His OSBs prepared for consideration by the CY05 SSBs for
promotion by the CY01B and CY02B Lt Col CSBs be corrected to reflect his
award of the Defense Meritorious Service Medal (DMSM) for the period March
1995 to March 2001 and a copy of the DMSM citation and/or order be included
in the Officer Selection Record.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency